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HomeMy WebLinkAboutC04-285 Internap t~ ~aS~_ `~ /NTER/~P~ 'Iris /rnarnmt Parfinrrance Cornpmny INTERNAP MASTER SERVICES AGREEMENT THIS INTERNAP MASTER SERVICES AGREEMENT (THE "AGREEMENT") is entered into by and between The County of Eagle, State of Colorado, with its prindpal place of business at 500 Broadway, PO Box 850, Eagle, CO 81631 ("Customer') and Intemap Network Services Corporation, inducting its affiliates and subsidiaries, a Delaware corporation with its prindpal place of business at 250 Williams Street, Suite E-100, Atlanta, GA 30303 ("Internap"), with an Effective Date of , 2004 ("Effective Date"). In addition to the terms and conditions of this Agreement, the following attached documents are deemed part of this Agreement, in addition to any other attachments agreed to and executed by the Parties incorporating the terms set forth herein: Sales Order Form (including all such forms executed hereafter by Customer for Services (defined below) under this Agreement (together, the "Sales Order Form")) - Attachment A; applicable Service Level Agreement -Attachment B. Both Intemap and Customer are referred to herein individually as a "Parbf' and collectively as the "Parties:' The terms in the Sales Order Forms related to the actual rates to be charged and the Services to be pertomted thereunder shall control as to the engagement described in that Sales Order Form, but additional legal terms may only be added by Amendment to this Intemap Master Services Agreement even if they are to apply only to one Sales Order Form. The terms and conditions set forth in this Agreement and in any Sales Order Form hereunder shall control in the event that there are different or additional terms set forth in any other purchase order submitted by Customer or acceptance form or invoice issued by Intemap. 1. SERVICES. Customer agrees to purchase the Internet connectivity services, coloration services, firewall services, and any other services offered by Intemap to Customer described in the attached Sales Order Form or any subsequent Safes Order Form (the "Services"). Intemap agrees to provide such Services in accordance with the applicable Service Level Agreement ("SLA"). 2. CUSTOMER OBLIGATIONS. 2.1 Customer shall, at its own expense, provide all necessary preparations required to connect to the Services and comply with Internap's installation and maintenance spedfications for delivery of the Services. Customer shall be responsible for the costs of any relocation or removal of connectivity that results from Customer's actions in addition to the costs for the original circuit until such time as the relocated crcuit is active. Additionally, Customer shall provide Intemap or its agents with reasonable access to Customers premises to perform any acts required under this Agreement. 2.2 Unless othervvise agreed in writing by an authorized representative of each Party, if Customer provides its ovm router in conjunction with the Services (e.g., a remote frame relay or private line connection from Customers Qremises to an Intemap fadlity), then Customer is fully responsible for the Installation, maintenance and configuration of such Customer-provided router. Subject to Intemap's approval, Customer is required to use a router capable of: (i) dealing with a full Internet routing table; (ii) speaking BGP4 in compliance with the current Internet RFC; (iii) receiving standard BGP communities; and (iv) using such communities to effect Intemap's routing policy. 2.3 If Customer multihomes to the Intemap network, Customer will implement Intemap's Diversity Plus service or another multihoming configuration agreed to by Intemap and Customer. 2.4 Customer shall be responsible for all hardware, software, cabling, services and components not provided by Intemap, including the selection, use compatibility, monitoring, support and troubleshooting thereof. If such items impair Customers use of the Services, Customer shall remain liable for payment to Intemap for the Services. Upon notice from Intemap that any such component causes or is likely to cause a hazard, interference or obstruction of the Services, Customer shall eliminate such item promptly, and Intemap may disconnect the Services immediately until such elimination occurs. Intemap shall not be responsible: (a) for the installation, operation, management or maintenance of any hardware, software, cabling or services not provided by Intemap in connection with the Services; (b) if any changes in the Services cause hardware, software, configurations, cabling or services not provided by Intemap to become obsolete or to require modification; (c) if any modification or configuration pertormed by Customer of Intemap or Customer provided equipment impairs the performance of Services hereunder; or (d) for the performance or availability of third party services or fadlities provided hereunder. 2.5 In accordance with Internap's and any other relevant equipment manufacturers speclfications, Customer shall maintain a suitable environment for any Intemap equipment housed on Customers premises and/or on premises rented by Customer or under its control. Customer shall be liable for any and all damages to Intemap-owned or leased property that maybe located on such premises, excluding reasonable wear and tear. 3. COLOCATION SERVICES. 3.1 Customer may, pursuant to and as described in a particular Sales Order Form, desire to sublease from Intemap certain space (the "Space") to locate certain equipment (the "Equipment"). 3.2 Customer shall use the Space solely for the location and operation of the Equipment. Customer shall not connect or interconnect the Equipment with any other equipment or services of any third party without Intemap's prior written consent. Except as set forth in the applicable SLA, the Space is accepted "AS IS" by Customer and Intemap makes no representation or warranty as to the fitness of the Space for Customers intended use. Subject to Customers compliance with all applicable clearance and authorization procedures, access to the Space shall be available twenty- four hours per day, seven days per week, but shall be limited to those employees of Customer identified to and approved by Internap in writing. If any employee of Customer causes any damage or threat of damage to any equipment, individuals or the Space, in Intemap's sole discretion, Internap may resclnd such employee's right to access to the Space. Intemap shall have the right to access the Space at any time for any purpose. Intemap shall have the authority (without subjecting Intemap to any liability related thereto) to suspend Customers operations in and around the Space if, in Intemap's sole discretion, there arises any hazardous condition, unsafe practice or emergency situation. Intemap may, upon reasonable notice, require Customer to relocate the Equipment to another space; provided, however, that such other space shall afford reasonably comparable access, environmental conditions and fadlities. All reasonable costs of relocating the Equipment in the above dreumstance shall be born by Intemap. 3.3 Neither Customer nor its agents or contractors shall make any alterations or improvements to the Space prior to submitting all plans and speclfications for such improvements to Internap and receiving Intemap's prior written consent. All fixtures, alterations, improvements and/or appurtenances attached to or built into, on or about the Space shall be and remain part of the Space and shall not be removed by Customer (unless otherwise directed by Intemap). Upon termination, expiration or cancellation of any sublease hereunder, except for alterations as described herein, Customer shall return the Space to the manner in which it existed upon commencement of the sublease, reasonable wear and tear excepted. Customer shall be liable for all damage to the Space, including all costs and expenses required to return the Space to its original condition. 3.4 Customer shall take all actions reasonably necessary to comply with the requirements of any underlying agreement or instrument related to or encumbering the Space upon notice of such requirements. Customer, its employees, agents and contractors shall abide by all applicable laws, regulations, tariffs, rules and polities related to the Space. In the event that any underlying agreement or instrument terminates, the Sales Order Form for Customer's coloration of the Space shall automatically terminate and any Services provided in connection with the Space shall also terminate and Intemap shall not be liable for any damages related thereto. 3.5 To secure the payment of the Fees due under this Agreement, Customer hereby grants to Intemap a continuing security interest in and lien upon the Equipment. in the event that Customer fails to pay Intemap all undisputed amounts owed under this Agreement when due, Customer agrees that, upon delivery of written notice to Customer and a reasonable period to cure, Intemap may (a) restrict Customers physical access to the Space and Equipment; and/or (b) take possession of the Equipment and store it, at Customers expense, and exerdse all remedies available under applicable law, all without being liable for prosecution or for damages. 4. FEES AND PAYMENT. 4.1 Customer shall pa the fees and charges set forth in the applicable Sales Order Form, which shall include the costs of third pa sernces or products, including increases thereto (collectively, the "Fees"). ~ees shall be invoiced together with any applicable sales, use or other taxes at the beginning of each month during which the Services are to be rovided or at the end of the month if the Services are usage based. If a Sales Order Form indicates a minimum usage amount, such minimum usage fees shall be billed at the beginning of each month during the Term of the applicable Sales Order Form. Fees and alt applicable taxes shall be paid to Intemap at its address first above written or at such other place as Internap may designate in writing. Payments are due net thirty (30) days from the date of Intemap's invoice and are subject to late charges thereafter, calculated at the lesser of 1.5% interest per month or the maximum rate permitted by law. Intemap may suspend performance or provision of the Services, terminate this Agreement or suspend payment of credits due Customer under the applicable SLA for late or nonpayment of Fees and Customer shall be liable for any attorneys or ection agency fees incurred by Intemap in connection therewith. If Customer is delinquent in its payments, Intemap may, upon written notice to Customer, modify the payment terms to require full payment before the further provision of any Services or require other assurances to secure Customer's payment obligations hereunder. Customer shall furnish finanaal information to Intemap as Intemap may, from time to time, reasonably request. Such information shall be deemed Confidential Information as defined herein. Any Services upgrades requested by Customer may result in additional fees or other charges. Except as otherwise stated in a particular Sales Order Form for the Services performed thereunder, Intemap reserves the right to change the Services it offers to its customers generally and the related rates at any time. 4.2 Customer is responsible for any taxes, duties, fees or surcharges that are imposed or authorized by regulatory and governmental entities, incuding but not limited to sales, use, gross receipts taxes, surcharges, franchise fees, occupational, excise, universal service (state and federal) taxes and surcharges and shall pay to Intemap or reimburse Intemap for amounts paid by Intemap relating to Services provided to Customer. 4.3 Billing for Intemap or Intemap provided third party connectivity services, including all associated fees and charges, commences upon the earlier of (a) delivery of the local Ioop/Telco connection; or (b) availability of the port circuit at the Intemap or connectivity partner service point for Customer Provided Access orders. Billing for Intemap coloration or Internap provided partner services incuding all associated fees and charges commences upon the delivery of the specified products and services. 4.4 Billing shall be provided to Customer through online access to Intemap's secure website. If Customer requests that Intemap send a print copy of an invoice, Customer shall be responsible for payment of an additional fee for such documentation. 4.5 If Customer's Service is disconnected due to nonpayment or late payment by Customer, Customer shall be responsible for all costs incurred by Intemap resulting from such disconnection in addition to payment for any free months of Service received by Customer. Additionally, if Customer requests the restoration of the Services, Customer shall be responsible for an additional fee for such restoration. 5. LICENSE GRANT. 5.1 Grant of Rights. Upon payment of all applicable Fees and subject to the terms and conditions of this Agreement, -ntemap grants Customer the nonexGusive, non-transferable right to use the Services and to view the performance data generated and compiled from Intemap's technology and Services hereunder for the term set forth in the appligble Sales Order Form solely for Customers own internal business operations. 5.2 Conditions and restrictions. Other than those rights expressly granted herein, Intemap grants to Customer no other rights to the Services, express or implied, and Intemap reserves all rights in the Services not expressly granted herein. Customer agrees that it shall not, nor shall it permit others to: (a) alter, adjust, repair or circumvent any aspect of the Services; (b) copy, modify decompile, reverse engineer or disassemble the performance data or any part thereof, Internap's proprietary technology or the Services provided hereunder; (c) use or allow the use by Customer personnel or third party agents or representatives of, the Services or performance data for the development or modification of new or existing Customer or third party product lines, analysis reports or for public release; or (d) resell, pass-through, sublicense, rent, lease, timeshare or rebrand the Services or otherwise provide the Services to any party not within Customer's enterprise and related personnel. Additionally, Customer shall not use, nor shall it permit others to use the Services: (a) for an unlawful, invasive, infringing, defamatory, fraudulent or obscene purpose; ~b) to send unsolicited, bulk email of any kind, regardless of the content or nature of such messages, post the same or similar message to one or more newsgroups or host or accept bulk replies resulting from such unsolicited email; (c) to forge IP address information or mail headers; (d) to send any virus, worm, trojan horse or harmful code or attachment; (e) to alter, steal, corrupt, disable, destroy, trespass or violate any security or encryption of any computer file, database or network; (f) so as to Interfere with the use of the Intemap or connectivity partner network by other customers or authorized users; or (g) in violation of the acceptable use policies of Internap's service providers, induding its backbone providers. If Customer, or a third party through Customer, violates any of the foregoing prohibitions, Intemap may immediately suspend the Services and/or terminate this Agreement without further liability or obligation to Intemap. 6. INTELLECTUAL PROPERTY RIGHTS. Intemap r@S@rveS all rights not eXpreSSly granted herein. Without limiting the generality of the foregoing, Customer acknowledges and agrees that, subject to the license grant set forth in Section 5, Intemap owns all right, title and interest in and to the specifications, technology, configurations, routing data and performance data related to the Services, including but not limited to any and all modifications and derivative works thereto. Additionally, subject to the license grant set forth in Section 5, Intemap has all rights to the IP addresses provided hereunder. 7. TERM AND TERMINATION. 7.1 Term. The term of this Agreement ('Term") shall commence upon Services billing (as described in Section 4) of the initial Sales Order Form. At the expiration of the term, the customer shall have the option to renew the term for an additional one year or longer periods. If the customer does not exercise such renewal option, the agreement shall continue on a month to month basis until the agreement is renewed for an additional term or cancelled. 7.2 Termination Other Than for Cause. Either Party may terminate this Agreement or any Sales Order Form hereunder by providing written notice to the other Party at least sixty (60) days prior to the requested termination date; provided, however, that such termination shall not affect Customer's or Internap's obligations hereunder, incuding Customer's payment of Fees for all Services rendered prior to termination and payment of all applicable Termination and Cancellation Fees, and Intemap's provision of Services through the termination date. 7.3 Termination for Cause. Either Party may terminate this Agreement or any Sales Order Form hereunder upon written notice if: (a) the other Party materially breaches this Agreement or the applicable Sales Order Form and fails to cure such breach within thirty (30) days following receipt of notice of such breach; (b) the other Party fails to function as a going concern or operate in the ordinary course; (c) there is an assignment by the other Party for the benefit of creditors; (d) there is a voluntary or involuntary bankruptcy filing by or against the other Party; or (e) the other Party breaches the confidentiality restrictions in Section 8. The Parties agree that Customer's sole remedy under the applicable SLA is the provision of credits thereunder, and such remedy may be provided in the period set forth in the applicable SLA. Failure to provide credits within the thirty (30) days set forth in (a) above shall not be deemed a failure to cure as set forth herein. 7.4 Termination Fees. Except where early termination occurs due to force majeure or termination by Customer for Cause, if Customer terminates this Agreement or a particular Sales Order Form prior to the end of the Term (as set forth in the particular Sales Order Form), Customer shall pay all costs incurred by Intemap through the lease of equipment and/or the management of Intemap or Customer Provided Equipment in addition to all amounts then due and unpaid plus the amount Customer would otherwise have had to pay to Internap over the remainder of the Term of the terminated Sales Order Form, or over the remainder of the Term for each current Sales Order Form if Customer is terminating this Agreement (the "Termination Fee"), calculated based on the remaining number of months of the Term, at a monthly rate based on the greater of (i) the monthly average billings hereunder during the Term and (ii) the minimum monthly bitting tier amount. Customer agrees to pay any Termination Fee within ten (10) days of the termination date. Customer acknowledges that such Termination Fee is not a penalty but is in the nature of liquidated damages. 7.5 Cancellation Fees. If Customer terminates or cancels this Agreement or a Sales Order Form prior to activation of the port circuit at the Intemap or connectivity partner service point, Customer shall be liable for all costs incurred by Intemap through the date of Intemap's receipt of Customer's written notice of cancellation (the "Cancellation Fee"). Customer agrees to pay any Cancellation Fee within ten (10) days of the cancellation date. 7.6 Effect of Termination. Termination of this Agreement or any Sales Order Form shall not limit either party from pursuing other remedies available to it, including injunctive relief, nor shall such termination relieve Customer of its obligation to pay all fees that have accrued or are otherwise owed by Customer, incuding Termination and Cancellation Fees. Upon expiration or termination of this Agreement or any Sales Order Form: (i) the rights granted to Customer under this Agreement or the particular Sales Order Form will cease immediate) upon the effective date of such termination and be of no further force or effect; (ii) each party will promptly destroy or return to the other party all Confidential Information belonging to such party and certify in writing to the other party that all such Confidential Information has been so destroyed or returned; (iii) Customer shall immediately surrender to Intemap, in its onginal condition, all equipment or other property owned or leased by Internap, induding any 1P space, that has been provided to Customer, and Intemap or its agents shall have the right to take immediate possession of such equipment and, for such purpose, enter Customer's premises where such equipment is located, free from all claims by Customer; and (iv) if Customer has Equipment on Intemap's property, Customer shall promptly remove all Equipment and other property as directed by Intemap and restore the Space to its prior condition. Any Equipment or other property not so removed by Customer may be removed and disposed of by Intemap and Customer shall be liable for the cost of removal, disposal and restoration of the Space to Its original condition. If Customer does not return all Intemap property in its original condition, in Intemap's sole discretion, reasonable wear and tear excepted, Customer shall be responsible for the replacement value of such property. Upon expiration or termination of this Agreement, the following Sections will continue and survive in full force and effect: 1-6, 7.4, 7.5, 7.6, 8, 9-12. 8. riONFIDENTIALITY. In connection with this Agreement, the Parties might obtain inforrnation of the other Party which is confidential or proprietary in nature ("Confidential Information"). Such Confidential Information shall inGude, without limitation: (a) any specifications, protoco outer configuration syntax and routing data and tables related to Intemap's P-NAP facilities, Assimilator technology and network services, in addition to any performance data collected and compiled by Intemap as a result of such technology and services; (b) any processes, methods, ideas, techniques, drawings, works of authorship, SLA, inventions, know-how, software, algorithms and formulae related to the products or services of either Party; (c) information concerning research, development, finantaals, procurement, customer lists, investors, employees, third party relationships, forecasts, future product plans and marketing plans of either Party; (d) any other information or matenat that is proprietary to either Party; and (e) any other information that is marked confidential, restricted, proprietary or with a similar designation. Such information shall be deemed Confidential Information, whether or not described as such at the time of communication. The Parties agree: (i) to take all reasonable steps necessary to maintain the confidentiality of any such Confidential Information and not to disclose such Confidential Information without the other Party's prior written consent; (ii) to not use or copy any Confidential Information for any purpose other than in direct furtherance of the purposes of this Agreement; and (iii) that their obligations under this Section 8 shall survive the termination of this Agreement for a period of three (3) years. Notwithstanding the foregoing, each Party's confidentiality obligations shall not apply to the extent that distaosed Confidential Information: (1) is already known to the other Party without an obligation of confidentiality; (2) becomes publicly available through no fault of the other Party; (3) is received from a third party rightfully and without restriction; (4) is independently developed without exposure to or use of the Confidential Information; or (5) is required to be disGosed by law, provided the disGosing Party is provided reasonable notice prior to the disGosure and the non-disGosing Party has made a reasonable effort to quash the legal requirement or otherwise prevent disGosure of its Confidential Information through legal means. The terms and conditions of this Agreement shall be deemed to be Confidential Information except that Intemap may discose and list Customer as a customer of the Services in connection with Intemap's advertising, publitaty and promotion of the Services. 9. WARRANTY AND DISCLAIMER. 9.1 Subject to the limitations contained herein, Intemap warrants that its proprietary P-NAP fatalities and Assimilator technology in the Services will, in all material respects, conform to the requirements of the applicable SI.A. 9.2 Customer's sole and exclusive remedy and Intemap's entire liability for such breach of the above warranty or any Gaim related to the Services shall be repair, replacement or crediting of the Services in accordance with the applicable SLA. For equipment provided by Intemap under the Customer Premise Equipment program, Intemap's responsibility and any representation or warranty, is hereby expressly disclaimed, whether express or implied, to the maximum amount allowed by law. 9.3 WITH RESPECT TO THE SERVICES, ANY EQUIPMENT AND/OR THE SUBJECT MATTER OF THIS AGREEMENT, THE FOREGOING WARRANTY IS IN LIEU OF ALL OTHER WARRANTEES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY OF SERVICE, TITLE, AND NON-INFRINGEMENT. ALL SUCH WARRANTIES ARE HEREBY EXPRESSLY DISCLAIMED TO THE MAXIMUM EXTENT ALLOWED BY LAW. 10. LIMITAnON oP LIABILITY. Under no tarcumstances shall Intemap be liable, either in contract, tort, warranty, strict liability, negligence or under any statute, regulation or any other theory for: (a) unauthorized access, alteration, theft, corruption, or destruction of or to Customer's or its customer's, end user's or business partner's computer files, databases, network, transmission fatalities or equipment; or (b) the content, accuracy or quali of the data transmitted through the Services. TO THE FULLEST EXT~NT PERMITTED BY APPLICABLE LAW, THE TOTAL AGGREGATE LIABILITY OF EITHER PARTY UNDER THIS AGREEMENT OR ANY SALES ORDER FORM SHALL BE LIMITED TO SIX MONTHS OF FEES PAID BY CUSTOMER TO 1NTERNAP UNDER THE SALES ORDER FORM UNDER WHICH THE LIABILITY ARISES, EXCEPT THAT IN THE CASE OF CUSTOMER'S INDEMNIFICATION OBLIGATIONS UNDER SECTION 11 NO SUCH LIMIT WILL APPLY. EXCEPT IN THE CASE OF CUSTOMER'S INDEMNIFICATION OBLIGATIONS UNDER SECTION 11 HEREIN, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY THIRD PARTY CLAIM OR FOR ANY INCIDENTAL, INDIRECT, CONSEQUENTIAL, PUNITIVE OR SPECIAL DAMAGES OF ANY NATURE ARISING UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ANY BREACH THEREOF, OF ANY NATURE WHATSOEVER (INCLUDING WITIHOUT LIMITATION LOSS OF PROFITS, DATA, BUSINESS OR GOODWILL), REGARDLESS OF WHETHER SUCH LIABILITY IS BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, BREACH OF WARRANTIES, FAILURE OF ESSENTIAL PURPOSE OR OTHERWISE, AND EVEN IF ADVISED OF THE LIKELIHOOD OF SUCH DAMAGES. 11. INDEMNITY. Customer will indemnify and hold Intemap harmless from and against all Voss, liability, damage and expense, including reasonable attorneys fees, caused by Customer's officers, employees, agents, vendors, partners or contractors arising from Gaims or demands: (a) for damages to property or for injury or d__ to persons, including without limitation any disability, death or Worker's Compensation benefits; (b) arising from data transmitted, received or stored on or over Intemap's network by or through Customer; (c) for any damages or loss incurred direct)y by Intemap as a result of a failure or modification of any Customer Provided Equipment installed within Intemap's fatalities or on Customer's premises, even when such Customer Provided Equipment was installed with the permission or assistance of Intemap; (d) of infringement of a third partys proprietary rights based on any information, materials or access to property provided by Customer; or (e) relating to the use by Customer or any end user of Customer of any Services provided under this Agreement. 12. GENERAL PROVISIONS. 12.1 Equitable Remedies. The Parties acknowledge that any threatened or actual breach of a Party's Intellectual Property Rights, Confidential Information and other proprietary rights by the other Party wit{ constitute immediate, irreparable harm, for which equitable remedies may be awarded by a court of competent jurisdiction. 12.2 Severability and Waiver. In the event any provision of this Agreement is held to be invalid or unenforceable, the remaining provisions of this Agreement will remain in full force. The waiver by either Party of any default or breach of this Agreement shall not constitute a waiver of any other or subsequent default or breach. Except for actions for nonpayment or breach of Intemap's proprietary rights, no action, regardless of form, arising out of this Agreement may be brought by either Party more than one year after the cause of action has accrued. 12.3 Assignment. Neither this Agreement nor any rights granted hereunder may be sold, leased, assigned, or otherwise transferred, in whole or in part, b either Party, and any such attempted assignment shall be void and of no effect, without the advance written consent of the other Party, such consent not to be unreasonably withheld or delayed; provided, however, that such consent shall not be required if either Party assigns this Agreement to a wholly owned subsidiary or in connection with a merger, acquisition or sale of all or substantially all of its assets, unless the surviving entity is a direct competitor of the other Party. 12.4 Force Majeure. Neither Party shall be liable for any delay or failure in performance due to war, acts of terror, riots, embargoes, strikes, accidents, fire, acts of God, supplier or vendor failure, outage or malfunction of local or longhaul telecommunications services, utility outage or other occurrence beyond such Party's direct control (each, a "Force Majeure EvenY'). The non- performing Party shall notify the other Party of a Force Majeure Event, and if a Force Majeure Event continues for more than sixty (60) days, Intemap or Customer may cancel this Agreement with no further liability (except for any amounts due and not paid by Customer) as a result of such Force Majeure Event. 12.5 Attorneys' Fees. The prevailing party in any action to enforce the terms of this Agreement will be entitled to reasonable attorneys' fees and other costs and expenses incurred by it in connection with such action. 12.6 Succesors and Assigns. All provisions of this Agreement shall be binding upon, inure to the benefit of and be enforceable by and against the respective successors and permitted assigns of Intemap and Customer. 12.7 Notices. All notices required to be sent hereunder shall be in writing and shall be deemed to have been given upon (i) the date sent by confirrned facsimile, (ii) on the date it was delivered by courier, or (iii) if by certified mail return receipt requested, on the date received, to the addresses set forth above and to the attention of the signatories of this Agreement and the relevant Sales Order Form, or to such other address or individual as the parties may spetafy from time to time by written notice to the other Party. 12.8 Insurance. During the Term of this Agreement, each party will maintain, at its own expense, commercial general liability insurance with policy limits of not less than One Million Dollars (US $1,000,000.00) per occurrence. Customer's insurance shall be primary over Intemap's insurance. Customer agrees to waive and to require its insurers to waive any rights of subrogation or recovery they may have against Intemap, its agents, officers, directors and employees. 12.9 Governing Law. This agreement and all matters arising out of or relating to this Agreement, shall be governed by the laws of the State of Colorado, extauding its conflict of laws provisions. The Parties agree that the venue in any action to enforce or interpret this Agreement shall be in the District in the 5th District for the State of Colorado. 12.10 VPN. Sales of VPN Services and the related equipment must comply with all U.S. Commerce Department regulations and U.S. State Department restrictions. Certain hardware encryption products may not be exported to certain countries, or may be exported only with individual licenses. Software that contains DES data and/or encryption technology may not be exported outside the United States. Customer is sole)y responsible for determining compliance and obtaining all required approvals to fatalitate the export of any VPN equipment to endpoints outside the United States except as expressly set forth in the Sales Order Form. 12.11 Entire Agreement. This Agreement is the entire and complete Agreement between the Parties with respect to the Services and subject matter hereof and supersedes any prior or contemporaneous agreements or understandings between the Parties, whether written or oral, and may not be modified in any way unless in writing, signed and dated by the duly authorized representatives of the Parties. No other act, document, usage or custom sha{I be deemed to amend or modify this Agreement. 12.12 Appropriations. Notwithstanding anything to the conVary contained in this Agreement, Customer shall have no obligations under this Agreement nor shall any payment be made to Intemap for any period after December 31 of each calendar year during the term of this Agreement without an appropriation by Eagle Co in accordance with a budget adopted by the Board of County Commissioners in compliance with applicable law. IN WITNESS WHEREOF, the Parties hereto have executed this Agreement on and as of the day and year first above written. INTERNAP NETWO ER I R ORATION: By: ~, Title: `' PV~7"~~/'"l'C-""t)rLY`~ Printed Name: c Jl~. ~'~~"~j CUSTOMER: Th l ty Of a State of Colorado By: v Title: CJI~a~.-%~navt, Printed Name: 1 ~ ~ ~ ~l Uyl~ Version 2.1- 07/07/03 ' '' Sales Order 10000045597 Internap Company Name: Company Address: Technical Contact: Phone: Email: Fax: Eagle County Government 500 Broadway Eagle, CO 81631 USA David Kekar 970-328-3582 Page 1 of 2 SALES ORDER # 10000045597 Add Customer PO: Billing Address: 500 Broadway Eagle, CO 81631 USA Billing Contact: Michael Roeper Phone: 970-328-3511 Email: Fax: Item ; Qty . Activity Service Description Request ~ Date PNAP Design & Engmeenng Fees Design & ~ Engmeermg Total ( 1 Recurring ; Fees ' Recurring Total (~~' I 1 ~ '~ 1. I ADD ! T1 Port and Loop Bundle Aug 31,; 2004; HOU 0.00 ! O.OOj ~ 825.00: 825.004 ` 2; `~ ~ 1 i ADD ~ Bundle and Loop Au~004 HOU 0.00 0.00 825.OOt 825.00 *Customer Provided Access (CPA) -Customer is responsible for all local access support and must work directly with the I access provider to resolve all issues. ~ TOTAL 1NTERNAP, not including usage-based pricing below ~' 0.00~ ~~~ 1,650.00 Telco Quote ' t .Design & Design & i i Item Telco: Activi t3', Service Descri tion p Expiration D te PNAP Engineering Engineering Recurring; Recurring Fees 'Total ; a Fees Total ~ 1 MFS, ADD , Access Charges - internap POP 713-490: 1301 Aug 19 , 2004 ' HOU 350.00 350.00! ' 388.701 388.70 _.._._. . .... _.: --- _ -- . _: Fannin St., Houston, TX _ _. _ . _ . __ .._ _.__ _ .._ _._.. _. _ ._.. _.._ ._ _ ....~i .____.. __ _ .~ .... __ _._... ~ 2 MFS: : ADD ° , Access Charges - internap POP 713-490: 1301 Fannin St., Houston, TX Aug 19, 2004 ~ HOU 350.00. 350.00; ~ ~ 388.70 388.70; TOTAL ES TIMATED TELCO ~ _ 700.00; _ _ _ _ 777.40 Comments/Special Notes: At the expiration of the term, the customer shall have the option to renew the term for an additional one year or longer periods. If the customer does not exercise such renewal option, the agreement shall continue on a month to month basis until the agreement is renewed for an additional term or cancelled. Billing Terms ; Contract Term Payments are due net thirty (30) days from the date of Internap's invoice. j Billing for Internap or Internap provided third party connectivity services, including all associated fees 1 and charges, commences upon the earlier of (a) delivery of the local loop/Telco connection; or (b) availability of the port circuit at the Internap or connectivity partner service point for Customer 1 Year , Provided Access orders. Billing for Internap colocation or Internap provided partner services including all associated fees and charges commences upon the delivery of the specified products and services. i Sales Order not valid unless signed and dated by both parties at least five (5) business days prior to the ~ ? date the Telco loop quote(s) expires. _ _~ file://M:\Customerpocuments\ProspectiveCustomer\Eagle%20County\so_10000045597.htm 8/2: ' ~ Sales Order 10000045597 Page 2 of 2 THE PARTIES AGREE TO BE BOUND BY THE SALES TERMS STATED HEREIN AND BY THE INTERNAP STANDARD TERMS AND CONDITIONS, INCLUDING ALL ATTACHMENTS THERETO, OF WHICH THIS SALES ORDER IS DEEMED TO BE A PART AND INCORPORATED THEREIN BY REFERENCE. PROVISION OF THE SERVICES HEREUNDER IS SUBJECT TO INTERNAP'S CONTINUING APPROVAL OF CUSTOMER'S CREDIT-WORTHINESS. B3~~D~ authorized customer signature date print name ~.......... ..._ ....... . ......~., .,'. ... ~... . _ .. w~.~......,~ ~ _ Z authorized INTERNAP signature date INTERNAL USE ONLY account executive: ~ Gerald Romano ; technical consultant: Brian House customer account specialist: j Kristin Bruce ~ file://M:\CustomerpocumentsiProspectiveCustomer\Eagle%20County\so_10000045597.htm 8/23/2004 /HTER/I~i4P~ ~~ The /ntsrnet Performance Company Service Level Agreement For Performance IP Services 1. Scope. This Service Level Agreement (SLA) applies only to Customer's service performance directly relating to Intemap's Service Points, ISP Backbone Networks, Primary DNS Services and Coloration Services. The IP access port servicing Customer at the Internap Service Point border router will serve as the demarcation for coverage except as otherwise noted in Sections 8 and 9 below. The scope of this SLA does not inGude, under any circumstances, any server on the Internet, customer premise equipment ("CPE") or local access service of any type except to the extent the installation interval times set forth in Section 5 below apply. The interpretation of this SLA is, at all times, intended to be subject to and consistent with the Intemap Network Operations Center (NOC) Guide. 2. Notification and Credits. Service-impacting conditions can be reported either by Customer or by Intemap. At the time Customer believes that a service impacting condition has occurred, Customer must initiate a trouble ticket by contacting Internap's NOC in accordance with the method of contact set forth in the Intemap NOC Guide. If the Intemap NOC believes that a service impacting condition has occurred, the NOC will open a trouble ticket on Customer's behalf. Once a ticket has been opened, Intemap will notify Customer of the situation and initiate diagnostic testing and fault isolation activities to determine the nature of the service condition. A credit will be applied to Customer's first monthly invoice subsequent to Internap's determination that a service impacting condition that lies within the scope of coverage has occurred. 3. Exclusions. Service quality objectives cover only those events isolated to the covered areas, as specified in Section 1 above. SI.A objectives do not apply to scheduled or Customer-requested service interruptions. Measurement of outages will be conducted only in accordance with the sections below. Under no circumstances will any tests (for example PING tests) performed by Customer, its vendors or partners be recognized by Intemap as a valid measurable criterion of violation length, quality or type for the purposes of establishing a service credit hereunder. Failure of Customer to inform Intemap of changes to Customer's technical contacts lists may result in the denial of credits under this SLA. The SLA objectives contained herein apply only to Intemap dedicated access customers; they do not apply to customers of Customer. Under no circumstances will credits be given for outages involving: (a) trouble tickets associated with new installations except as set forth in Section 5 (i.e., before service activation); (b) trouble tickets erroneously opened by Customer; (c) a circuit release required by Customer for testing; (d) trouble tickets opened by Customer for service monitoring purposes only; or (e) trouble tickets related to Customer maintenance, configurations, negligence, accidents or omissions. ; or (f) events beyond Internap's reasonable control. 4. Credtt Types Intemap offers two types of service credits under this SLA. Proactive credits are automatically processed by the appropriate Internap team member, and are credited to Customer's monthly invoice following Internap's determination that the event lies within the scope of coverage. Customer is not required to request proactive credits. However, if Customer feels that Internap has not applied a credit correctly, Customer is able to request these credits via their Intemap Sales Team anytime within thirty (30) business days of the resolution of the event in question. Non-proactive service credits are not applied automatically to Customer's monthly invoice. Non-proactive credits must be requested in writing from Customer's Internap Sales Team within thirty (30) business days of the resolution of the event for which the credit is being requested. Internap will apply any non-proactive credits due to Customer on Customer's monthly invoice following their request and Intemap's determination that the event lies within the scope of coverage. 5. Installation Intervals. a. Port Installation Interval Time for Customer Provisioned Access Internap will deliver United States (US) Performance IP ports within the installation intervals set forth below. The interval for measuring the fulfillment of a connectivity order begins upon order approval confirmation within Intemap's order entry system, and when Internap receives Customer's valid Design Layout Record (DLR). Order approval confirmation occurs when (i) Intemap has received a signed Sales Order Form complete with accurate information and signed Agreement for Service, (ii) capacity has been approved, and (iii) Customer's credit has been approved. Customer is responsible for delivering their DLR to Internap. Changes to an accepted work order, Customer-initiated delays (including those associated with Customer's provisioned access), and any Customer credit approval issues will place the installation interval on hold. In the event an access carrier declares a network capacity constraint, Internap will put a hold on the install interval. When Internap is notified that the access carrier has completed the necessary network augmentations to relieve the capacity constraint, Intemap will resume tracking the interval installation commitment at the point it was put on hold. The interval concludes with the availability of the IP port and the establishment of billing for all contracted IP services. The Port Install Intervals apply only to the availability of the Internap's IP port and cross connect; they do not apply to the local loop, CPE, or any other Customer provided infrastructure. i. Remedies and Credits The guarantee for port installation interval time for Customer Provisioned Access is determined and calculated on aper-install basis. The processing of any Customer credit will be done by the appropriate Internap team member, who will apply the credit parameters specified below. Intemap Network Services ~~ /NTERNAP' Product Category Port Install Interval Commitment Credit Type Amount of Credit T-1 T-3 10 business days Proactive 100% of the Port Design and Engineering Fee. Metro Ethemet OC-3, OC-12 Installation Interval Time for US Ethernet and Remote Access Services. Intemap will deliver US Performance IP connectivity services within the installation intervals set forth below. The interval for measuring the fulfillment of any connectivity order begins upon order approval confirmation within Intemap's order entry system. Order approval confirmation occurs when (i) Intemap has received a signed Sales Order Form complete with accurate information and signed Agreement for Service, (ii) capacity has been approved, and (iii) Customer's credit has been approved. Changes to an accepted work order, Customer-initiated delays (including those associated with Customer's provisioned access), and any Customer credit approval issues will place the installation interval on hold. The interval concudes with the establishment of billing for all contracted IP services. The install interval guarantee only applies to local connectivity services and remote connectivity services of Type-1 and Type-2 classification located wholly within the continental United States. Type-1 means a local access circuit that is delivered by a single carrier. Type-2 means a local access circuit that is delivered by a carrier that engages another carrier to complete delivery of the circuit to Customer's premise. In the event a local access carrier deGares a network capacity constraint, Intemap will put a hold on the install interval. When Intemap is notified that the local access carrier has completed the necessary network augmentations to relieve the capacity constraint, Intemap will resume tracking the interval installation commitment at the point it was put on hold. The 10Mb and 100Mb Ethemet installation interval guarantee applies only to installation of the cross connect circuit to installed cabinets and cages and does not apply to Ethemet orders requiring the installation of new cabinets, cages or other similar equipment. Remedies and Credits The guarantee for installation interval time for Ethemet and Remote Access Services is determined and calculated on aper-install basis. The processing of any Customer credit will be done by the appropriate Intemap team member, who will apply the credit parameters specified below. Product Cate o Interval Commitment Credit T e Amount of Credit 10 Mb and 100 Mb Ethemet 25 business days Proactive 100% of the Port Gi abit Ethemet 25 business da s Design and T-1 40 business da s Engineering Fee. T-3 60 business da s OC-3, OC-12 Individual case basis c. European Installation Interval Time for Ethernet and Remote Access Services Intemap will deliver European connectivity services within the installation intervals set forth below. The interval for measuring fulfillment of connectivity order begins upon order approval within Intemap's provisioning system. Order approval occurs when (i) Intemap has received a signed sales order form complete with accurate information and signed Agreement for service, (ii) Customer's credit has been approved, and (iii) capacity has been approved. Changes to an accepted sales order, Customer-initiated delays (incuding those associated with Customer provisioned access), and credit approval issues will place the installation interval on hold. The interval concludes with the establishment of billing for all contracted IP services. Remedies and Credits The European Installation Interval guarantee applies only to installation of the cross connect circuit to installed cabinets and cages located within Intemap's European Service Points and does not apply to Ethernet orders requiring the installation of new cabinets, cages or other similar equipment. Product Cate o Interval Commitment Credit T Amount of Credit 10 Mb and 100 Mb 45 business days Proactive 100% of the Port Ethernet Design and En ineerin Fee. 6. General Network Metrics Performance Verification and Measurement Methodologies Internap will measure latency, packet loss, jitter and network availability with active monitoring systems that gather performance statistics on a regular basis using IP-based round trip measurements. These measurements shall be performed on an ongoing basis to adequately determine a consistent average performance level for all Intemap traffic. The sampling rate for performance measurement is no greater than every 5 minutes. Network Availability is a derived, percentage-based measurement that is based on the number of one-hour periods of 100% packet loss within a calendar month. Internap's General Network Metric Internap Network Services Confidential and Proprietary /NTERlVAP' ~~ n,.,-,M,.,n...«Lm.,,..~~,,.-. measurements will be based on Service Point-to-Service Point tests using any or all of Intemap's Performance IP backbone networks. These service level thresholds are based on the average monthly network availability, latency, jitter and packet loss as calculated among the specified Performance IP Service Points as posted on the Intemap Performance IP Source and Destination List. Intemap reserves the right to change the Service Points that are used in the calculation of the network availability, latency, jitter and packet loss guarantees. Current and previous month's average measurements will be posted to apassword-protected section on the Intemap web site. b. Remedies and Credits. Customer's Services must be connected to the actual Intemap Service Point destination(s) where the Packet Loss, Jitter, Latency, or network unavailability triggering a failure occurs in order to be eligible for credit(s). If the average Network Availability Jitter, Latency or Packet Loss performance objectives fall below the stated levels within the calendar month, Intemap shall provide a service credit as stated below. Network Availabilit Performance Ob'ective Credit T Amount of Credit North America 100% elated to d MRPC North America to Euro a 100% Proactive r 1 day prorate ervices t d ff North America to Ja an 99.7% . s ec e the a Euro a to Ja an 99.7% Packet Loss Performance Ob active Credit T Amount of Credit North America Less than 0.3% ted to l MRPC North America to Euro a Less than 1% Proactive re a 1 day prorated rvices d t ff North America to Ja an Less than 1% . se ec e the a Euro a to Ja an Less than 1% Latenc Performance Ob active Credit T e Amount of Credit North America Will not exceed 45 milliseconds Proactive North America to Europe Will not exceed 115 1 day prorated MRPC related to milliseconds i d North America to Japan Will not exceed 150 serv ces. the affecte milliseconds Europe to Japan Wi0 not exceed 325 milliseconds Jitter Performance Ob'ective Credit T Amount of Proactive Credit North America Will not exceed 0.5 milliseconds Proactive ted to l MRPC xceed 2 t Will re a 1 day prorated North America to Europe no e the affected services. milliseconds North America to Japan Will not exceed 5 milliseconds IP Service Availability Metrics a. Service Point Problem Resolution Time. Intemap will use commercially reasonable efforts to ensure that eligible outages isolated to an area within the Service Point and affecting Customer's specific resource will be resolved as soon as reasonably possible and, in any event, in less than ten (10) minutes. The IP access port servicing Customer at the Intemap Service Point border router will serve as the demarcation for coverage. These Customer-specific problems exGude backbone and other redundant resource problems. Failure to meet this objective may make Customer eligible for a service credit to be applied to Customer's next monthly invoice for Services. Remedies and Credits. The Service Point Problem Resolution Time Guarantee is determined and calculated on aper-occurrence basis, commencing upon the NOC's initial awareness of an outage and ending when the service has been restored. Customer's service credit is a prorated amount derived from the length of the service outage and Customer's Monthly Recurring Port Charge ("MRPC") for the affected service. The processing of any Customer credit will be done by the appropriate Intemap team member, who will apply the credit parameters as specified below. Len th of Outa a Amount of Credit Credit T e Less than 10 minutes None 10 minutes to 30 minutes 2 da s rotated MRPC Proactive 31 minutes to 60 minutes 4 da s rotated MRPC 61 minutes to 6 hours 6 da s rotated MRPC More than 6 hours 4 weeks rotated MRPC Second qualifying outage in same calendar month Two times the amount listed above for the respective second uali in outs e. Intemap Network Services Confidential and Proprietary ~ t ,` /NTER/Vi4P 61 minutes up to 6 hours 6 days prorated MRPC+ 100% MRPDC More than 6 hours 4 weeks prorated MRPC+ 100% MRPDC 9. Coiocation Facility Metrics Power. if Customer has purchased and installed a redundant power solution as part of their Intemap Services, Intemap will use commercially reasonable efforts to ensure that Customer's power will be always available to Customer's cage, cabinet, or rack 100% of the time except as part of scheduled maintenance. If Customer has purchased and installed a non-redundant power solution as part of their Intemap Services, Intemap will use commercially reasonable efforts to ensure that Customer's power to Customer's cage, cabinet, or rack will not experience an electrical outage exceeding 15 seconds except as part of scheduled maintenance. This guarantee does not extend past Internap's or its coloration partner's power interface at Customer's cage, cabinet or rack, and does not include Customer's electrical connections within their cage, cabinet, or rack. Remedies and Credits Credits for power outages are determined and calculated on aper-occurrence basis, commencing upon the NOC's initial awareness of an outage and ending when the electrical service has been restored. Customer must have specifically purchased and installed redundant power feeds from Intemap to qualify for redundant power guarantees. Customer's service credit is a prorated amount derived from Customer's monthly space and power fee for the affected service. Ail credits must be requested from Customer's Intemap Sales Team in writing within 30 days of the resolution of the outage for which the credit is being requested. Remedies shall only be given on affected cabinets, cages, or racks purchased from Intemap. The processing of any Customer credit will be done by the appropriate Intemap team member, who will apply the credit parameters as specified below. Category Type of Credit Type of Power Length of Outage Amount of Credit Services 1 second to 30 2 days space and Internap Proactive Redundant minutes power fee for the Facility affected service 31-60 minutes 4 days space and power fee for the affected service Greater than 60 One week space and minutes power fee for the affected service Non- Redundant >15 seconds 2 days space and power fee for the affected service 1 second to 30 2 days space and Intemap Non-Proactive Redundant minutes power fee for the Partner affected service Facility 31-60 minutes 4 days space and power fee for the affected service Greater than 60 One week space and minutes power fee for the affected service Non-Redundant No outages greater 2 days space and than 15 seconds power fee for the affected service b. Environmentals Intemap will use commercially reasonable efforts to ensure that the temperature of open space in Internap's coloration area will remain between 64 and 78 degrees Fahrenheit, and relative humidity will remain between 30% and 70%. If the temperature or humidity of the open space in the coloration area exceeds these parameters, Customer may be eligible for a service credit to be applied to Customer's next monthly invoice for services. This commitment in no way applies to localized conditions within a particular customer cabinet, cage, rack or other enclosed space. Remedies and Credits Credits for environmental violations are determined and calculated on a per- occurrence basis, commencing upon the NOC's initial awareness of an outage and ending when the environment has been normalized. Customers service credit is a prorated amount derived from Customer's monthly space fee for the affected service. Non-proactive credits must be requested from Customers Intemap Sales team within 30 days of the resolution of the outage for which the credit is being requested. Remedies shall only be given on affected cabinets or cages purchased from Intemap. The processing of any Customer credit will be done by the appropriate Internap team member, who will apply the credit parameters as specified below. Internap Network Services Confidential and Proprietary t E `~ /NTERNAP m. w„w n..r.•. Tem rature Allowed Parameters T of Credit Amount of Credit Intemap Facility 64 to 78 degrees Proactive 2 days space fee for the affected Fahrenheit service Intemap Partner 64 to 78 degrees Non-Proactive 2 days space fee for the affected Facili Fahrenheit service Humidi Allowed Parameters T of Credit Amount of Credit Intemap Facility 30% to 70% Proactive 2 days space fee for the affected service Intemap Partner 30% to 70% Non-Proactive 2 days space fee for the affected Facili service c. Physical Security. Intemap will use commercially reasonable efforts to ensure that access to Customer's coloration facility(s) will be monitored and restricted at all times, and that all entry logs and/or facility video logs will be made available upon Customer's request to the NOC. i. Remedies and Credits. Credits for physical security violations are determined and calculated on a per- occurrence basis. Customer's service credit is a prorated amount derived from Customer's monthly space fee for the affected service. Non-proactive credits must be requested from Customer's Intemap Sales team in writing within 30 days of the resolution of the outage for which the credit is being requested. Remedies shall only be owed on affected cabinets or cages purchased from Internap. The processing of any Customer credit will be done by the appropriate Internap team member, who will apply the credit parameters as specified below. Cate o T of Credit Amount of Credit Interna Facili Proactive 2 da s s ace fee for the affected service Interna Partner Facili Non-Proactive 2 da s s ace fee for the affected service 10. Applicability a. If Customer experiences four (4) qualifying violations of the same metric as"defined in Sections 7.a., 8 and 9 of this SLA on the same service within the same calendar month, Customer shall have the right to terminate the affected service in lieu of service credits for the fourth or final such qualifying event or any other remedy agreed to by the Parties which is offered for such events and without liability or obligation except for unpaid Fees and costs relating to the Services rendered through the date of such termination and all third party termination, disconnection and cancellation fees relating to such termination, inGuding, but not limited to, CPE gear or Local Telephone/Access Company's local access charges, provided Customer has notified Intemap of its intent to terminate in writing within 30 days after the last such outage. b. Eligibility for any credits is subject to Customer's account being held current and having no outstanding balance due. Customer's total credit in any contract year shall not exceed 60 days fees for the covered service type (i.e. MRPC, power, space, DNS). Residual credits may not be carried over to subsequent years. c. Customer must have contracted for the specific service covered under each provision to qualify for any credits against those provisions. d. EACH CREDITOR TERMINATION RIGHT SHALL BE THE CUSTOMER'S SOLE AND EXCLUSIVE REMEDY FOR THE CORRESPONDING SERVICE OUTAGE AND INTERNAP'S FAILURE TO MEET THE SERVICE OBJECTIVES. ANY DISPUTES ARISING OUT OF OR RELATING TO THIS SLA MUST BE BROUGHT WITHIN SIX MONTHS OF THE OCCURRENCE OF ANY SUCH DISPUTE. e. This SLA applies to new Performance IP Customers who use the Services in accordance with Intemap's policies on or after 6-1-2004, or existing Performance IP Service customers that extend the Term of their existing agreement who use the Services in accordance with Internap's policies. This SLA will be applied to all qualifying incidents occurring on or after 6-1-2004. Intemap reserves the right to change or modify this SLA and will post such changes or modiflcations to a web site designated by Internap and made available to Customer, provided that any such change or modification shall not adversely affect Customer's then-current SLA. Internap Network Services Confidential and Proprietary